In terms of words, sober and restrained, downright devastating in substance: this is the verdict of Evelyne Schmid of the University of Lausanne, Elena Cima of the University of Geneva and Damiano Canapa of the University of Lausanne in an article on the initiative on corporate responsibility just published on www.jusletter.ch. The title stands for sober and reserved: “Three misunderstandings” (“Trois malentendus” in the French-language article). The analysis concludes in plain language that the initiative neither infringes the sovereignty of other states nor does it lead to a reversal of the burden of proof. Companies would not be obliged to contribute to the improvement of human rights and the environment in other countries. However, they should take due care to avoid human rights violations and environmental damage.
No legal imperialism - rather “certain duty”
The authors set out step by step why the initiative does not violate the UN ban on interference in the internal affairs of other states. International law, and in particular the UN principles on business and human rights, even gives Switzerland a certain obligation to encourage companies to protect human rights and the protection of the environment in its own law. Since these obligations are intended to apply to companies headquartered in Switzerland, they are not interference with other legal systems. They would be internal rules with extraterritorial effects. Such rules would not only be accepted internationally for a long time, but they even explicitly propose the UN principles on economics and human rights. This calls on Switzerland to stop companies from violating human rights in other countries and not harming the environment. To speak of legal imperialism is unfounded.
The due diligence requirements provided for in the initiative are also internationally supported. However, this does not guarantee that human rights or environmental damage can be avoided in any case. Nor is there any obligation to contribute to the improvement of human rights and the environment in other countries. Rather, it is a question of avoiding or preventing violations of these elementary and internationally recognised standards in one’s own activities.
No danger if business is done to the best of our knowledge
Finally, the authors explain why the accusation of the so-called reversal of the burden of proof is wrong. An action against an undertaking would have a chance only if the victim could prove damage suffered, a breach of a rule of law, the causality between infringement and damage caused and the failure by the undertaking to exercise due diligence. However, a company could still be harmless if it shows that it has carried out due diligence on human rights and the environment to the best of its knowledge or “appropriate”.
Also, as is often claimed, due diligence did not extend to all business and supply relationships of a company. The concept of control used in the own-initiative text limits the use of due diligence on relationships with companies over which a Swiss company effectively exercises control.
Experts working in German-speaking Switzerland have already explained that the opponents of the Group Responsibility Initiative are fighting with arguments free of legal expertise. Equally sober in language and equally uncompromising in the matter.
Justice Minister Keller-Sutter: “particularly irritating”
“Partly inaccurate and incomplete,” said Markus Schefer, professor of public law in Basel, Roland von Büren, professor emeritus of business law in Berne, Franz Werro, professor of bond law in Fribourg/Freiburg and Alexander Brunner, chief judge of Zurich.
Her criticism was directed primarily at Federal Councillor Karin Keller-Sutter, because she had given the impression that the initiative was “comprehensively applicable to SMEs”. They also objected to the allegation of the alleged reversal of the burden of proof, which had left “the ground of serious legal analysis”. The experts informed the Minister of Justice that a defendant undertaking could release itself from its liability by demonstrating reasonable care" amounted to “an opportunity for exemption and not a reversal of the burden of proof”. And the legal experts considered it “particularly irritating” that the minister responsible for the judiciary confuses criminal and civil law in the debate on corporate responsibility. This confusion makes it impossible to “make a sober legal classification of the liability rules of the initiative”, conclude the legal experts unflatteringly.
If even the Federal Council does not comply with the constitutionally imposed obligation to inform itself “in the content correctly and objectively”, it is no wonder that the voting debate offered a lot of noise instead of content.